Don’t take a manager’s word that he’s not retaliating

Issue: Courts will frown on "rubber-stamped" discipline against an employee who has complained of harassment.

Risk: You can be implicated as part of an internal "conspiracy" to retaliate.

Action: If you don't have the specialized knowledge or technical background to verify the reasons for a manager's disciplinary measures, arrange for someone with the knowledge to do it.

Beware: If you can't verify the reasons that a manager cites for firing an employee who has complained of harassment, find someone who can. Otherwise, you're taking a risk that the manager is masking retaliation behind a smoke screen of false performance measures.

That's what happened to the HR director at one organization, and it cost him.

Recent case: Godofredo Hernandez, a 10-year technician, complained to HR on behalf of a co-worker who said she was sexually harassed by Hernandez's supervisor. HR investigated and found no harassment.

A month later, the company terminated Hernandez for making various technical mistakes. The proof? Hernandez's supervisor prepared a list of Hernandez's mistakes. The HR director and another supervisor reviewed the list and approved the firing. Hernandez sued for retaliatory discharge, claiming the harassment complaint sparked the heightened scrutiny of his work.

At trial, the company argued that, because two "neutral" supervisors had reviewed the supervisor's reasons for firing Hernandez, the company couldn't be guilty of retaliation. But the appeals court rejected the company's argument, saying that retaliation could have occurred because those "reviews" were too superficial to be meaningful. Instead, the court said, a qualified technician should have considered Hernandez's performance and advised HR whether those mistakes justified termination. (Hernandez v. Spacelabs Medical Inc., No. 02-35615, 9th Cir., 2003)

Bottom line: It's not impossible to discipline employees who complain of harassment. Just make sure you can show that the discipline flows from objective performance factors, not retaliation.